Clinton W. Calhoun, III, Esq. for appellant. District
Attorney Westchester County, (Raffaelina Gianfrancesco, Esq.)
PRESENT:: ANTHONY MARANO, P.J., JERRY GARGUILO, JAMES V.
from two judgments of the Justice Court of the Town of
Cortlandt, Westchester County (Gerald M. Klein, J.), both
rendered May 4, 2015. The judgments convicted defendant, upon
his pleas of guilty, of common-law driving while intoxicated
and leaving the scene of an incident with personal injuries
without reporting, respectively.
that so much of the appeal as is from the judgment convicting
defendant of leaving the scene of an incident with personal
injuries without reporting is dismissed as abandoned; and it
is further, ORDERED that the judgment convicting defendant of
common-law driving while intoxicated is affirmed.
appeal, defendant claims that the accusatory instrument,
which originally charged defendant with driving while
intoxicated as a felony, was not properly reduced to a
misdemeanor pursuant to CPL 180.50 (3) (a) (iii) and that the
original felony complaint did not set forth factual
allegations as to the basis for the arresting officer's
determination that defendant had been intoxicated.
was originally charged in a felony complaint with felony
driving while intoxicated (Vehicle and Traffic Law
§§ 1192 , 1193  [c]) and with several other
offenses. The felony complaint alleged that a New York State
trooper charged defendant with having committed the felony of
driving while intoxicated, in that on "or about
9/28/2013 at about 6:00 p.m. in the Town of Cortlandt County
of Westchester, " defendant "knowingly and
unlawfully commit[ted] the felony of driving while
intoxicated. A person is guilty of... felony driving while
intoxicated when he commits the crime of driving while
intoxicated in violation of Section 1192 subdivision 2, 2A,
3, 4 or 4A of the Vehicle and Traffic Law, and has previously
been convicted of a violation of subdivision 2, 2A, 3, 4 or
4A of such section within the preceding ten years... to
wit... that on" January 3, 2005, in the Justice Court of
the Town of Yorktown, defendant had been convicted of
violating Vehicle and Traffic Law § 1192 (3). On
September 28, 2013, defendant "knowingly and unlawfully
operate[d]" a 1991 Honda Accord on State Routes 6 and
202, in the Town of Cortlandt, Westchester County, "in
an intoxicated condition."
felony complaint also included the following paragraph:
"That the sources of the deponent's information and
grounds of his belief as to the operation of defendant's
vehicle at the aforesaid time and place are based upon direct
knowledge and upon statements and admissions made by said
defendant to deponent that he/she was operating the aforesaid
vehicle at said time and place. The sources of deponent's
information in regard to defendant's intoxication are
based upon direct knowledge, those being the observations of
defendant by deponent at said time and place and the
performance of field sobriety tests. These actions were such
that would lead deponent to believe that the defendant was
intoxicated at the aforesaid time and place."
trooper also prepared a supporting deposition, in which he
checked boxes indicating that defendant had exhibited the
odor of an alcoholic beverage, glassy eyes, impaired speech,
and impaired motor coordination. Boxes were also checked
indicating that defendant had failed the horizontal gaze
nystagmus, walk-and-turn, and one-leg field sobriety tests. A
box was also checked signifying that defendant had admitted
that he had been drinking and that he had consumed "a
few" alcoholic beverages.
court proceeding on October 11, 2013, the People informed the
court that defendant had not been convicted in 2005 of
driving while intoxicated, and that the charge had, in fact,
been dismissed. Thus, the People requested that the felony
charge of driving while intoxicated be reduced to a
misdemeanor charge of common-law driving while intoxicated.
The court agreed, stating that it would mark the accusatory
instrument as a misdemeanor complaint. The court made the
following notations on the felony complaint: The word
"FELONY" in the caption of the instrument was
crossed out, replaced by "MISD." The court placed
its initials below and to the right of "MISD" with
the date "10/11/13." However, only the following
words in the felony complaint were crossed out: "and has
previously been convicted of a violation of subdivision 2,
2A, 3, 4 or 4A of such section within the preceding ten
years." All other references in the instrument to felony
driving while intoxicated were not crossed out.
January 12, 2015, defendant pleaded guilty to misdemeanor
common-law driving while intoxicated (Vehicle and Traffic Law
§ 1192 ). He also pleaded guilty to leaving the scene
of an incident with personal injuries without reporting
(Vehicle and Traffic Law § 600  [a]), which charge
was set forth in a separate accusatory instrument.
issues raised by defendant on appeal relate only to the
judgment convicting him of misdemeanor common-law driving
while intoxicated. Consequently, so much of the appeal as is
from the judgment convicting him of leaving the scene of an
incident with personal injuries without reporting is
dismissed as abandoned (see People v Rodriguez, 14
A.D.3d 719, 720 ).
180.50 (3) (a) (iii) provides one of several ways to reduce
an accusatory instrument charging a felony to a misdemeanor.
In pertinent part, the statute provides that a "charge
is reduced' from a felony to a non-felony offense"
if "the factual allegations of the felony complaint
and/or any supporting depositions are legally sufficient to
support" a non-felony offense, and the felony complaint
or a copy thereof can be converted into an information
"by notations upon or attached thereto which make the
necessary and appropriate changes in the title of the
instrument and in the names of the offense or offenses
argues that merely crossing out the word "FELONY"
in the caption of the accusatory instrument, replacing it
with "MISD, " and crossing out only some of the
language in the felony complaint referring to felony driving
while intoxicated was insufficient to satisfy the
requirements of CPL 180.50 (3) (a) (iii). Consequently,
defendant asserts that no reduction was accomplished, ...